In Congress and state legislatures across the country, right-wing politicians are pushing hard to construct new barriers to women exercising the constitutional right to have an abortion.
Earlier this month the U.S. House passed a bill banning abortions after 20 weeks of pregnancy, and GOP legislators in Wisconsin are staging a parallel attack. They introduced a similar 20-week ban, which Gov. Scott Walker has indicated he would sign, and have scheduled a hearing on the bill for next week. PFAW supporters in Wisconsin will be out in force to demonstrate their commitment to protecting this core right.
A couple of important points about 20-week bans: first, they are plainly unconstitutional. One of the main holdings of the 1973 Roe v. Wade decision was a woman’s right to an abortion before the fetus becomes viable – that is, the point when a fetus could survive outside the uterus. As Imani Gandy writes at RH Reality Check:
In the past 40 years, the Court has never wavered from the fetal viability benchmark…Courts have consistently smacked down legislative attempts to ban abortions at 20 weeks. But states are undeterred by such pedestrian concerns as constitutionality.
Pushing these bans are a deliberate effort to prompt a challenge to the Roe decision, which anti-choice groups believe they can win.
Second, the overwhelming majority of abortions (close to 99 percent) happen before 21 weeks. Those that happen after that are often because of a complicated situation – such as the discovery of a severe fetal abnormality – and the path forward should be determined by a woman and her doctor, not by politicians looking to score points with their base.
Finally, and perhaps most importantly, these bans are part of an anti-choice agenda with a much broader goal: banning abortions across the board. From mandatory waiting period laws to “personhood” efforts which would give embryos full legal rights from the moment of conception, the anti-choice movement is playing the long game and slowly “chipping away at choice.”
When legislators try to insert themselves into decisions that should be made by women and their health care providers, it’s more than a political ploy. It’s a real threat to every woman’s health and autonomy.
As police violence plagues cities across the nation, communities are actively responding with initiatives to mitigate violence and work toward justice. Elected officials, faith leaders and community activists have come together to strengthen their communities in places such as Ferguson and Baltimore. As Pastor Barry Hargrove, president of the Progressive Baptist Convention of Maryland and an active minister in our African American Religious Affairs Program, explained, “There are lots of things happening behind the scenes, happening on the ground, that are not being reported.”
On Tuesday, PFAW hosted a telebriefing for members about the Black Lives Matter movement. PFAW Communications Director Drew Courtney moderated a dialogue among Hargrove, Missouri State Senator and member of affiliate PFAW Foundation’s Young Elected Officials Network Maria Chappelle-Nadal, PFAWF Director of Youth Leadership and Tallahassee Mayor Andrew Gillum, and PFAWF Director of African American Religious Affairs Leslie Watson Malachi.
In the telebriefing, these leaders answered questions about Baltimore and Ferguson and discussed progressive measures taking place in their own communities. In both Baltimore and Ferguson, local leaders have turned toward broad and responsive solutions – such as community policing, social justice education curricula, and prayer rallies – to address targeted violence against minorities.
Despite these steps, Chappelle-Nadal noted that there are still “a significant number of issues that have not been addressed by the legislature.” Chappelle-Nadal, as well as Hargrove, Gillum, and Malachi, encouraged participants to continue advocating for local policies that can help to provoke a systemic change in police practices and empower communities.
Call participants posed many productive questions, including a member who asked what steps could be taken to address tension between the police and communities. Hargrove suggested working within “spheres of influence,” whether it be faith-based organizations or public policy proposals. He also encouraged dialogues between police and community members; Chappelle-Nadal echoed this sentiment by urging citizens to build connections based on commonalities rather than differences.
Listen to the full briefing here:
On Friday, PFAW Communications Director Drew Courtney joined Rev. Al Sharpton on MSNBC’s ‘PoliticsNation’ to talk about Mike Huckabee’s response to Josh Duggar’s sexual abuse scandal. After Duggar admitted to sexually abusing young girls as a teenager, Huckabee, a presidential hopeful, posted a lengthy Facebook status supporting Duggar and his family. He claimed Duggar was victimized by the public’s “insensitive bloodthirst” for scandal, and called Duggar’s actions inexcusable, but not unforgivable.
Courtney said that while he doesn’t believe he should tell Huckabee how to respond to the allegations, it is fair to look at how Huckabee has responded to other issues. As Courtney explained, Huckabee “responded with outrage when gay and lesbian people were allowed to serve openly in the military. He responded with outrage every time we’ve seen laws to protect LGBT people at work.” And Courtney reminded viewers that Huckabee has even “responded with so much outrage to marriage equality that he’s compared gay people to Nazi propagandists and people who have sex with sheep.”
Huckabee’s support for the Duggars is shaded by his own hypocrisy, Courtney explained: Huckabee “seemed kind of stunned by the judgment that he feels the Duggars have received, but he’s responded with bitterness and judgment at every step along our country’s way to legal equality for gay people.” Courtney commented, “I hope that, frankly, [Huckabee] remembers this feeling next time he decides that he should be attacking gay and lesbian families in order to score some political points.”
Last September, a majority of the Senate voted in support of the Democracy For All Amendment, a proposal that would overturn Supreme Court decisions like Citizens United and let lawmakers put commonsense limits on money in elections.
Building off that progress, this week activists in more than 12 states delivered petitions to their House and Senate members asking them to support the Democracy For All Amendment. As wealthy special interests prepare to pour billions into the 2016 elections, ordinary Americans aren’t just shaking their heads. They are signing petitions, organizing events, lobbying their elected officials, and pushing for change.
In California, local leaders delivered 311,950 petitions – all signed by Californians who support an amendment to overturn decisions like Citizens United – to Rep. Tony Cardenas. Their raised fingers represent the fight to protect the promise of “one person, one vote.”
In New York, activists did the same at the office of Rep. Yvette Clark.
One Maryland activist even hand-delivered his petitions directly to Minority Whip Steny Hoyer.
A number of local leaders in New Hampshire came out to deliver thousands of petitions to Sen. Kelly Ayotte...
…which caught the attention of local media.
All in all, more than five million Americans have signed petitions in support of a constitutional amendment to get big money out of politics. Grassroots leaders across the country are going to keep up the pressure on their elected officials until support for the amendment in Congress reflects the overwhelming support among constituents.
This week PFAW staff joined members of the Arkansas Democracy Coalition to kick off a 2016 ballot initiative campaign to increase disclosure in election spending and support a constitutional amendment to overturn Supreme Court cases like Citizens United. The series of events, including a performance showcasing the story of legendary campaign finance activist Doris “Granny D” Haddock and a march for democracy through downtown Little Rock, culminated with a press conference on the steps of the state capitol building.
Speakers included Paul Spencer of Regnat Populus, a convening organization of the Arkansas Democracy coalition; Rep. Clarke Tucker, a member of the Arkansas state legislature; Rhana Bazzini, an 83-year-old woman who has marched hundreds of miles in the tradition of Granny D to promote campaign finance reform; and Rio Tazewell, the Government By the People campaign coordinator at People For the American Way.
The Arkansas Democracy Coalition, in partnership with PFAW and other national allies, has submitted ballot language awaiting approval by the Arkansas Attorney General. Upon approval, a signature gathering campaign will launch to collect the 70,000 names needed to get the resolution on the ballot. If passed, the resolution would make Arkansas the 17th state on record in support of an amendment to get big money out of politics.
This piece was written by PFAW Political Director Randy Borntrager and originally appeared in the Huffington Post.
On May 19, part of President Obama’s executive actions to keep DREAMers and families from being deported was supposed to go into effect, but they’ve been temporarily blocked because of a lawsuit brought on by anti-immigrant Republicans. This week, immigration groups and progressive organizations across the country are rallying in support of the President’s executive actions.
After reading so many anti-Obama, anti-immigrant screeds, I began to wonder, what if all the Right’s most extreme rhetoric came together in one place? Behold! The ultimate anti-immigrant op-ed, brought to you by the Republican Party and their extremist base! Included are actual statements from GOP leaders and activists like Former Governor Jeb Bush, Representative Steve King (IA), and anti-immigrant leader William Gheen.
President Obama’s Out to Destroy Our Nation Through His Executive Actions on Immigration
President Obama’s lawless executive actions on immigration that protect DREAMers and families from deportation are an insult to the American people. Obama is acting like a Latin American dictator, King George, a tyrant, and Putin, abusing his power to promote his nefarious agenda.
This literally could be the death of the Republic. The executive actions could cause our country to descend abruptly into an abyss that we have never seen in the history of this country. Or at the least, the executive actions will turn us into a lawless third-world nation. Our Constitution will certainly be torn asunder.
If we stop families from being deported, we open the doors for our country to be invaded by immigrants, one person at a time. Our pockets are being picked and innocent people are being killed by illegal aliens and hurt and robbed and beaten and raped by criminal foreign nationals that are in our country. Most undocumented immigrants are 130-pound drug runners with calves the size of cantaloupes.
They're going to be dependent on welfare and handouts and hence will be dependent on the Democratic Party for their livelihoods. These immigrants just come here for easy acquisition of public support through welfare programs. They’re rushing over here because they’ve heard there’s a bowl of food just across the border. And once they’re here, they’ll raid the Social Security system and lie about their work history.
We can’t stand idly by as the President does this – he’s not above the law and above the Constitution. The Senate should not confirm a single nominee—executive or judicial—outside of vital national security positions, so long as the illegal amnesty persists. We could also shut down the government again!
But that’s not enough. We have a constitutional duty to stop this runaway, imperial presidency – should we impeach Obama? And at some point, we have to evaluate whether the president's conduct aids or abets, encourages, or entices foreigners to unlawfully cross into the United States. That has a five-year in-jail penalty associated with it. We must also start talking about treason. Obama’s action certainly is an act of treason because it’s aiding and abetting the enemies of America and giving them comfort and aid.
In an International Business Times article from earlier this month, Andrew Perez and David Sirota reported that Jeb Bush, as governor of Florida, used taxpayer funds to subsidize a company owned by the far-right, anti-gay American Family Association (AFA).
Specifically, the “lucrative tax break” that Bush delivered helped the company’s production of “Web filter technology to prevent Internet users from seeing pornography or information about homosexual relationships or transgender identities.”
In the article, People For the American Way President Michael Keegan pointed out that Bush’s actions highlight his extremism as an elected official:
"That Jeb Bush gave taxpayer money to a subsidiary of a hate group whose founder has compared homosexuality to theft and murder and has claimed that gay people target children speaks volumes about who Bush is as an elected official,” said Michael Keegan of the liberal activist group People for the American Way. “If there was any question about his extremism before, this eliminates any shred of doubt.”
People For the American Way has long monitored the far-right, homophobic actions and rhetoric of the American Family Association. When Bush first provided the tax break to AFA’s company, PFAW was one of the leading groups to call him out on it. In 2001, PFAW President Ralph G. Neas and PFAW Florida Director Lisa Versaci urged Bush to rescind his support for an organization whose president had declared: “For the sake of our children and society, we must oppose the spread of homosexual activity! Just as we oppose murder, stealing, and adultery.”
Back in January, House Republican leaders cancelled a vote on a 20-week abortion ban, the top legislative priority of anti-choice groups, shortly before it was scheduled to take place on the anniversary of Roe v. Wade. A group of more moderate anti-choice Republicans, led by Rep. Renee Ellmers, had objected to language that exempted rape survivors from the ban only if they had reported the assault to law enforcement first, which Ellmers said “further victimized the victims of rape.”
Anti-choice groups were furious and have been holding protests outside the offices of House Republican leaders demanding a new vote on the bill. It seems that they have now gotten their wish.
A number of outlets are reporting that the House leadership has scheduled a vote next week on the 20-week ban after months of negotiations about the rape exception. According to news reports, while the requirement that rape survivors file a police report is no longer in the bill, they are now required to present evidence that they “have received either medical treatment or licensed counseling at least 48 hours prior to the late-term procedure.”
According to LifeNews, the bill also includes an “informed consent” requirement that notifies women “of the age of her baby and the requirements under the law” and includes language making it easier to sue abortion providers.
The Weekly Standard reports that National Right to Life Committee and the Susan B. Anthony List are both behind the new version of the bill:
In 2013, the House passed the bill, called the “Pain Capable Unborn Child Protection Act,” which included exceptions in the cases of rape, incest, and when a physical health issue endangers the life of the mother. But an effort to pass identical legislation in the new Congress was scrapped in January on the eve of the annual March for Life because some GOP members, led publicly by Rep. Renee Ellmers of North Carolina, objected to the bill's reporting requirement for late-term abortions in the case of rape. The bill required the crime to be reported to law enforcement officials at any point prior to performing a late-term abortion.
According to House Republicans, that requirement has been removed from the bill. Instead, the legislation requires abortion doctors to ensure that victims have received either medical treatment or licensed counseling at least 48 hours prior to the late-term procedure. With that change, the bill has assuaged the concerns of those Republican members while still garnering strong support of national pro-life groups, including the National Right to Life Committee and the Susan B. Anthony List.
“I’m proud we’ve gotten to a point where we found a consensus between our members and the pro-life groups out there,” said Rep. Diane Black of Tennessee.
The fact that there was a rape exception in the bill at all was the result of last-minute negotiations on a previous version of the bill after its sponsor, Trent Franks, made a Todd Akin-like remark about pregnancy from rape being rare. As we explore in our recent report on the “personhood” movement, rape exceptions are extraordinarily divisive within the anti-choice community. The National Right to Life Committee’s decision to support the Franks bill even with the narrow rape exception caused a number of state anti-choice groups to form a rival organization that pushes for “no exceptions” anti-choice policies.
Blogger Jill Stanek reports that one person involved in the negotiations on the current version 20-week ban told her, “This is the most complicated bill I’ve ever worked on.”
At the annual White House Correspondents’ Dinner this weekend, President Obama delivered 20 minutes of his trademark dry humor, working in jabs at Michele Bachmann, Joe Biden, climate change deniers in Congress, and himself, to name a few. Perhaps some of the most pertinent jokes of the evening came about halfway into his speech, when he poked fun at the 2016 GOP presidential field, the Koch brothers and the influence of big money in politics.
“Soon the first presidential contest will take place, and I for one cannot wait to see who the Koch brothers pick,” President Obama joked. “It’s exciting… the winner gets a billion dollar war chest. The runner up gets to be the bachelor on the next season of The Bachelor.”
“I mean, seriously – a billion dollars,” the president continued. “From just two guys. Is it just me or does that feel a little excessive?”
The president making these pointed jokes is the latest example of a growing cultural awareness of the problems stemming from big money in politics. With presidential candidates Hillary Clinton, Sen. Lindsey Graham, and Sen. Bernie Sanders all in support of a constitutional amendment to overturn Supreme Court decisions like Citizens United, this issue is rapidly ripening for broader public discussion.
As the Supreme Court prepares for arguments about the right to marry, PFAW Foundation Senior Fellow Jamie Raskin says our country may be “on the verge of a historic breakthrough.”
On Thursday, PFAW hosted a telebriefing for members and supporters on this historic moment in anticipation of oral arguments in the Supreme Court marriage cases (Obergefell v. Hodges) next week. PFAW Executive Vice President Marge Baker moderated a conversation among affiliate PFAW Foundation Senior Fellows Jamie Raskin and Elliot Mincberg as well as People For supporters who called in to join the discussion.
In the telebriefing, Raskin and Mincberg unpacked some of the questions before the court — not only whether states can prohibit same-sex couples from marrying or refuse to recognize marriages from other states — but also the implications of the various types of reasoning the justices may use to reach their decision.
They also reflected on the remarkable social transformation our country has seen on the rights of LGBT people. Raskin remembered that the 1986 Bowers v. Hardwick decision, which upheld the criminalization of “sodomy,” came out while he was in law school. With the Court’s steady march away from that kind of legal reasoning, he said, “there’s no going back from here.”
Mincberg pointed out that, unfortunately, the backlash has started before the Supreme Court even decides the cases. With “right to discriminate” legislation pending in more than a dozen states and a handful considering “marriage refusal” bills, it’s clear that the far Right is already forging ahead with a nationwide push to undermine the expanding rights of LGBT Americans.
Call participants shared some great questions and opinions, including a retired pediatric doctor who asked why the principles accepted by the medical community to take care of your patients rather than question or judge them have not been accepted by the political community as well.
Listen to the full telebriefing here:
This piece, by PFAW Senior Fellow Jamie Raskin, was originally published by Salon.
If you take away Prohibition (the 18th Amendment) and its repeal (the 21st), most of our constitutional amendments since the original Bill of Rights have expanded the voting rights and political equality of the people.
Our post-Reconstruction amendments have abolished slavery (the 13th), provided for equal protection of the laws and required reduction of states’ congressional delegations if they disenfranchise eligible voters (the 14th), denied states the power to discriminate in voting based on race (the 15th) and shifted the mode of election of U.S. Senators from the legislatures to the people (the 17th). They have passed woman suffrage (the 19th), given residents of the federal district the right to vote and participate in presidential elections by casting electors (the 23rd), abolished poll taxes in federal elections (the 24th) and lowered the voting age to 18 (the 26th).
Moreover, many of these amendments have directly responded to Supreme Court decisionsdenying the political rights of the people. For example, the 19th Amendment overturned the Court’s decision in Minor v. Happersett (1875), which held that Equal Protection did not protect the right of women to vote, affirming precedents finding that women’s proper place is in the domestic sphere. Similarly, the 24th Amendment banning poll taxes in federal elections overturned the Court’s 1937 decision in Breedlove v. Suttles upholding such taxes.
But if you listened only to some of my colleagues in the legal establishment, you might never know that our unfolding Bill of Rights is a dynamic chronicle of the democratic struggles of the people for participatory political equality nor would you know that the people have often had to override reactionary decisions of the Supreme Court in the process.
A lot of lawyers today react with horror to U.S. Reps. Marc Pocan and Keith Ellison’s excellent push for a constitutional amendment to establish an affirmative and universal right to vote against recurring state efforts to disenfranchise people. And a lot of academics were aghast last summer when every Democratic United States senator supported a constitutional amendment to reverse Citizens United, McCutcheon v. FEC (2014) and Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett (2011).
The amendment, backed by the vast majority of Americans and a surging national campaign that 16 states and more than 650 cities and towns have joined, would restore the people’s power to stop CEOs from spending corporate treasury wealth on political races, to impose reasonable campaign finance limits such as caps on aggregate contributions, and to develop public financing laws with matching grants that help empower poorer candidates to be heard over the roar of big money.
Yet we are constantly invited to believe that, however much big money comes to dominate our politics and control public policy, we must never touch our Constitution. It must be hidden away in the attic where it will be tended by wise Supreme Court justices and law professors who know that the people’s constitutional values will always be inferior to those of the judiciary and the experts. This attitude betrays our progressive democratic heritage and Thomas Jefferson’s important warning:
Some men look at constitutions with sanctimonious reverence, and deem them like the arc [sic] of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment . . . . But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times.
The country’s most prolific voting rights scholar and blogger, Richard Hasen—a colleague and friend of mine—is the most recent legal academic to pour cold water all over the movement for a constitutional amendment to rebuild the statutory wall protecting democratic elections from the flood of plutocratic and corporate wealth. This is the wall that has been mostly demolished by the Roberts Court in both Citizens United and the McCutcheon decision.
While Citizens United turned every corporate treasury in the country into a potential political slush fund, McCutcheon wiped out all aggregate limits on federal campaign contributions so that tycoons can now max out to every incumbent Member of Congress–plus all their opponents! The top half of the top 1 percent can now pretty much bankroll all federal campaigns, which is one reason why run-of-the-mill Republican millionaires and bundlers are complaining to the Washington Post that they have been bypassed in the nation’s wealth primary by “multi-multimillionaires and billionaires.” The bottom half of the top 1 percent is getting a sense of what it is like to be a political spectator in the country’s exclusionary wealth primary.
The Post also reports that public anxiety about plutocracy is becoming a key issue in the presidential election—not just among Democratic activists for whom it is “red meat,” according to Professor Hasen, but for Republicans and Independents too—pretty much everyone who lacks the strategic advantages of Sheldon Adelson and the Koch brothers. Earlier this month, Republican Sen. Lindsey Graham also pointed to the need for a constitutional amendment to fix the damage done by Citizens United. Indeed, if you don’t think the accelerating takeover of our politics by big money affects public policy in the real world, you may or may not be an academic, but you are definitely too innocent to be let out of the house by yourself.
In launching her 2016 campaign, Democratic presidential candidate Hillary Clinton declared a “big fight” to fix “our dysfunctional political system” by getting “unaccountable money out of it once and for all, even if it takes a constitutional amendment,” and I say good for her. Given Clinton’s legislative and political experience and her own prodigious navigation of our money politics, she obviously knows how the Roberts Court’s magical transformation of for-profit business corporations into political membership groups has completely distorted politics in the Citizens United era. Of course, some of the Republican presidential candidates are charging her with hypocrisy for seeking to change the plutocratic political system that shapes her campaign, along with everyone else’s, and sullies everyone who touches it. But this is predictable and pedestrian. The nihilistic enemies of reform prefer nothing systemic to change just so long as they can keep denouncing Hillary Clinton.
Thankfully there is no talk of hypocrisy in Hasen’s critique, but still all Clinton gets from him is a lot of negative energy. First, he faults her for not trying to fix “the nation’s disclosure laws,” which is strange because she supported the Disclose Act, which U.S. Rep. Chris Van Hollen introduced and which Republicans killed, and she has always championed disclosure. It is also strange because Clinton is clearly treating a constitutional amendment as a last resort in a struggle against a runaway faction of five plutocrats on the Supreme Court. If I am reading her correctly, Clinton wants unaccountable corporate money—which is now spent by CEOs in our political campaigns on a secret basis and without any consumer, shareholder or citizen control over it—to be subject to public regulation “even if it takes” a constitutional amendment. That doesn’t sound so reckless to me.
For Hasen, it seems sufficient to work for years or decades to mandate disclosure of the billions of dollars in corporate money coursing through the veins of the body politic, and then leave things at that. He is afraid that actually restoring the power of Congress to impose “reasonable” and viewpoint-neutral limits on corporate political expenditures would be subject to an effective judicial veto through reinterpretation by “a conservative majority on the Roberts Court” and therefore useless. Well, it is also the case that the addition of the words “equal protection” to the Constitution were effectively nullified through reinterpretation by a Jim Crow Supreme Court between Plessy v. Ferguson (1896) and Brown v. Board of Education(1954). But does that make passage of the Fourteenth Amendment a bad idea? The Supreme Court has been a conservative and reactionary institution for most of our history, but that is precisely the reason for the people to write our Constitution in a way that advances and protects strong democracy. Having the right constitutional language in place may not be sufficient to constrain the reactionary elitism of the Supreme Court, but it is certainly necessary.
If we just wait around for new justices to change things and fail to directly engage this constitutional question in the public arena, we can expect to see the few remaining bricks of campaign finance law flattened by the Right and the Court, including base limits on individual contributions, the Tillman Act’s century-old ban on corporate contributions to federal candidates, the rules against “coordinated expenditures” between candidates and independent spenders, and the limits in 29 states on making campaign contributions during legislative sessions–all of them clearly at odds with the absolutist dogmas of the Right: that political money is political speech, that business corporations are First Amendment-protected political (and religious!) associations, and that the only kind of political corruption we can acknowledge and regulate are quid pro quo transfers tantamount to bribery.
But Hasen, finally, calls a constitutional amendment a “political nonstarter” because of the difficulties of passage. But here he ignores not only the success that popular movements have had in inscribing democratic values in the Constitution throughout our history, but also the way that serious constitutional movements can reshape the terrain of American politics with or without final passage and ratification. For example, the heroic movement for the Equal Rights Amendment in the 1970s not only led to widespread adoption of state constitutional amendments and significant federal statutory changes advancing the equal rights of women but also helped shock the Supreme Court into action to apply “heightened scrutiny” to official gender-based discrimination under Equal Protection doctrine. Constitutional movements can change the mind of the Court.
Whether or not we summon up the two-thirds of Congress and three-fourths of the states needed to pass a strong new anti-plutocracy amendment, the movement for such an amendment is essential to change the degraded assumptions of the Citizens United era. It will open up space for revival of the Disclose Act, for consideration of the “Shareholders United” legislation that I and other legislators have been advancing at the state level, for progress for small-donor plans like Congressman John Sarbanes’ Government By the People Act, and for an honest debate about Citizens United, which turned on its head two centuries of conservative understanding of what a corporation is.
Even if the best we can hope for is some modest new disclosure rules and a few new Supreme Court justices who tilt towards democracy over plutocracy, as Hasen advises Hillary Clinton, these outcomes are far more plausible and likely with a lively popular constitutional movement on the ground than the defeatist attitude that the Supreme Court always knows best.
Last week, Montana Governor Steve Bullock signed into law a sweeping campaign finance reform bill that represents a major bipartisan victory in the movement to get big money out of politics.
SB289 – the Montana Disclose Act – will require dark money groups to report their spending on state political races. The bill is a much-needed update to Montana’s campaign laws, and will help provide Montana voters with more information on the groups behind the political attack ads they see every election cycle.
During the state legislature’s debates on SB289, Montana PFAW members and other local activists lobbied their representatives, calling state representatives and urging them to support greater transparency in Montana’s politics. While signing the bill, Gov. Bullock announced that the state finally has a law “that mandates that every penny spent in our elections will be disclosed.”
“When it comes to Montanans as individuals having control of our elections, this is the most significant day in the last 112 years since Montanans passed the Corrupt Practices Act,” said Bullock.
SB289 passed with bipartisan support in both the State House and Senate. Montana’s victory is yet another indicator that big money’s threat to our democracy transcends party affiliation – and that money in politics is really only a partisan issue in Washington, DC.
When the Supreme Court struck down limits on outside spending in elections in the 2010 Citizens United case, critics pointed to a potentially huge public policy impact in issues ranging from environmental protection to tax policy to health care to voting rights.
But one impact of Citizens United has gone without as much public discussion as it deserves: It’s making it harder for criminal defendants to get a fair trial.
Last fall, the American Constitution Society released a report by two Emory University law professors illustrating that the big spending that Citizens United let loose in state judicial elections created a climate in which elected judges were more reluctant to side with defendants in criminal cases.
Joanna Shepherd and Michael S. Kang found that outside groups seeking to influence judicial elections — usually for reasons unrelated to criminal justice policy — often relied on “Willie Horton” style attack ads implying that targeted judges were “soft on crime.” The proliferation of outside spending and the attack ads that the spending bought, they found, correlated with a decrease in the frequency with which elected state appellate judges ruled in favor of defendants in criminal cases.
“Unlimited independent spending is associated with, on average, a seven percent decrease in justices’ voting in favor of criminal defendants,” they wrote. “That is, the results predict that, after Citizens United, justices would vote differently and against criminal defendants in 7 out of 100 cases.”
Shepherd discussed her findings yesterday at a panel convened by ACS, along with retired Montana Supreme Court Justice James Nelson, the National Association of Criminal Defense Lawyers’ Norman Reimer and Tanya Clay House of the Lawyers’ Committee for Civil Rights Under Law.
Nelson, who was on the Montana Supreme Court when it famously ruled that Citizens United didn't apply to that state's unique history of corruption (Nelson dissented, saying the high court’s ruling applied to Montana, but took the opportunity to demolish the decision while he was at it), said he had lived first-hand the impact of big money in judicial races.
“The fact of the matter is that is when justices running for political office are attacked during their campaigns, it forces them to look over their shoulder constantly,” he said. “And I can tell you that from personal experience. You have to fight to make yourself vote the way the law requires you to vote. And most judges do. But it’s in these marginal cases where there’s a close call and perhaps the case should go to a defendant, it doesn’t go to the defendant.”
The groups spending money on judicial attack ads, he said, “really don’t give a damn about defendants’ rights. They really don’t care. What they want to do is to get somebody onto a court who marches in lockstep with their philosophy, or get somebody off the court that does not march in lockstep with their philosophy.”
Reimer sounded a similar note: “The fight is really about commercial interests. It’s usually about the plaintiffs’ bar versus the corporate interests, the unions, the conservatives. It’s about nothing to do with criminal justice. But because of the fear factor, that’s where you go after somebody.”
“I think we all need to understand and appreciate what’s really at risk here,” Nelson said. “And what’s really at risk is the fair, independent and impartial judicial system that most citizens in this country, and I think most lawyers in this country, simply take for granted. And if the dark money flows from Super PACS and the Koch brothers and RSLC and groups like them get control of the judiciary … That’s what this is all about: getting control of the third branch of government. If they get control of that third branch by spending their way to the top, then we’re going to lose that fair, impartial and independent judiciary that we’ve all come to expect and rely upon. Certainly criminal defendants are going to suffer immeasurably.”
Clay House pointed out that there is already “a different perception of the criminal justice system and judiciary among communities of color.” Pew found in 2013 that 68 percent of black Americans said they were “treated less fairly than whites” in the courts, while the majority of whites were oblivious to racial disparities in the criminal justice system.
Unchecked spending in judicial elections, the evidence shows, may be making that perception, and the reality, even worse.